One of the most controversial issues in the federal state is the participation of its constituent units in the ownership and management of the country’s natural resources. Therefore, constitutional and legal regulation of energy resources is of great importance in federal oil and natural gas producing countries. Apparently, the 2005 Iraqi Permanent Constitution, in Articles 111 and 112, refers to the right to ownership and management of oil and natural gas. As we can see in Article 111, it is a general text that the oil and gas resources belong to all Iraqi peoples. Additionally, in the article 112, section 1 state that the federal government alongside with the regions and provinces that produce oil and gas manage the existing fields. Moreover, in the section 2 of the same article deals with the formulation of policies and strategies necessary to develop oil and gas resources. According to this article, the federal government, the regions and the provinces shall participate in the planning and strategy of oil resources and shall not be managed unilaterally by the federal government.
The issue of the Kurdistan Region’s management and ownership rights to energy resources in the Iraqi federal state has divided the opinions of institutions and lawyers. The first opinion, which more closely reflects the views of the Kurdistan Regional Government, believes that according to the current constitution, the region has the right to manage and own energy resources. As per the statement of the Council of Ministers, “The Kurdistan Region believes that the oil and gas sector is not within the exclusive jurisdiction of the federal government, and Article 112 of the constitution recognizes the right of the Kurdistan Region to extract and develop oil and gas. The two sides agreed that if the bill is not passed in the Iraqi parliament within six months, both governments will be responsible for developing their own oil and gas sectors.
In a statement issued on May 30, 2022, the KRG said: “The KRG’s behavior on the oil issue is in line with the permanent Iraqi constitution. The oil and gas issue is within its jurisdiction they are not in the exclusive rights of the federal government, which is mentioned in Article 110 of the constitution.”
“In accordance with Article 112 of the Iraqi Constitution, the oil wells discovered in the Kurdistan Region after 2005 fall within the powers of the Kurdistan Region. The text also mentions the current oil wells, i.e. those that existed before 2005, because the oil wells in the region were discovered after 2005, so they fall within the powers of the Kurdistan Regional Government, on the back. Accordingly, the texts of the Kurdistan Regional Government’s Oil and Gas Law No. 22 of 2007 are in line with the provisions of the Iraqi Constitution and there is no contradiction.”
James Crawford, on the other hand, is an American jurist and director of the Lauter Pacht Center for International Law at the University of Cambridge. In an official legal opinion on the Kurdistan Region’s oil contracts, submitted to the Kurdistan Regional Government on December 29, 2008; it believes that the Kurdistan Region’s oil contracts with foreign companies are not contrary to the permanent Iraqi constitution. Crawford, however, affirms the KRG’s authority to manage oil and gas resources as defined in the KRG’s oil and gas law, which is consistent with the provisions of the current Iraqi constitution. At the same time, Kurdish lawyer, “Dr. Saadi Barzanji” believes that the right to manage the oil fields discovered after 2005 falls within the powers of the Kurdistan Regional Government. Iraqi lawyer Dr. Munzir al-Fadl believes that the oil contracts signed by the Kurdistan Regional Government are legal and not contrary to the federal constitution.
Therefore, it can be said that the essence of the problems between Erbil and Baghdad in this case, lies in different interpretations of the articles of the permanent constitution. The federal government accuses the Kurdistan Region of being independent and non-transparent in signing contracts, extracting, exporting and marketing oil. The Kurdistan Regional Government says that the Iraqi constitution is the constitution of a federal country.
